31 C.F.R. §§ 800.201–800.228

§800.201. Aggregated data.

31 C.F.R. § 800.201

The term aggregated data means data that have been combined or collected together in summary or other form such that the data cannot be identified with any individual.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.202. Anonymized data.

31 C.F.R. § 800.202

The term anonymized data means data from which all personal identifiers have been completely removed.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

The term business day means Monday through Friday, except the legal public holidays specified in 5 U.S.C. 6103, any day declared to be a holiday by federal statute or executive order, or any day with respect to which the U.S. Office of Personnel Management has announced that Federal agencies in the Washington, DC, area are closed. For purposes of calculating any deadline imposed by this part triggered by the submission of a party to a transaction under § 800.401(g)(2) or § 800.501(i), any submissions received after 5 p.m. Eastern Time are deemed to be submitted on the next business day.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.204. Certification.

31 C.F.R. § 800.204

(a)

The term certification means a written statement signed by the chief executive officer or other duly authorized designee of a party filing a notice, declaration, or information, certifying under the penalties provided in the False Statements Accountability Act of 1996, as amended (18 U.S.C. 1001) that the notice, declaration, or information filed:

(1)

Fully complies with the requirements of section 721, the regulations in this part, and any agreement or condition entered into with the Committee or any member of the Committee, and

(2)

Is accurate and complete in all material respects, as it relates to—

(i)

The transaction; and

(ii)

The party providing the certification, including its parents, subsidiaries, and any other related entities described in the notice, declaration, or information.

(b)

For purposes of this section, a <I>duly authorized designee</I> is—

(1)

In the case of a partnership, any general partner thereof;

(2)

In the case of a corporation, any officer or director thereof;

(3)

In the case of any entity lacking partners, officers, and directors, any individual within the organization exercising executive functions similar to those of a general partner of a partnership or an officer or director of a corporation; and

(4)

In the case of an individual, such individual or his or her legal representative.

(c)

In each case described in paragraphs (b)(1) through (4) of this section, such designee must possess actual authority to make the certification on behalf of the party filing a notice, declaration, or information.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.205. Committee; Chairperson of the Committee; Staff Chairperson.

31 C.F.R. § 800.205

The term Committee means the Committee on Foreign Investment in the United States. The Chairperson of the Committee is the Secretary of the Treasury. The Staff Chairperson of the Committee is the Department of the Treasury official so designated by the Secretary of the Treasury or by the Secretary's designee.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.206. Completion date.

31 C.F.R. § 800.206

The term completion date means, with respect to a transaction, the earliest date upon which any ownership interest, including a contingent equity interest, is conveyed, assigned, delivered, or otherwise transferred to a person, or a change in rights that could result in a covered control transaction or covered investment occurs.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.207. Contingent equity interest.

31 C.F.R. § 800.207

The term contingent equity interest means a financial instrument that currently does not constitute an equity interest but is convertible into, or provides the right to acquire, an equity interest upon the occurrence of a contingency or defined event.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.208. Control.

31 C.F.R. § 800.208

(a)

The term control means the power, direct or indirect, whether or not exercised, through the ownership of a majority or a dominant minority of the total outstanding voting interest in an entity, board representation, proxy voting, a special share, contractual arrangements, formal or informal arrangements to act in concert, or other means, to determine, direct, or decide important matters affecting an entity; in particular, but without limitation, to determine, direct, take, reach, or cause decisions regarding the following matters, or any other similarly important matters affecting an entity:

(1)

The sale, lease, mortgage, pledge, or other transfer of any of the tangible or intangible principal assets of the entity, whether or not in the ordinary course of business;

(2)

The reorganization, merger, or dissolution of the entity;

(3)

The closing, relocation, or substantial alteration of the production, operational, or research and development facilities of the entity;

(4)

Major expenditures or investments, issuances of equity or debt, or dividend payments by the entity, or approval of the operating budget of the entity;

(5)

The selection of new business lines or ventures that the entity will pursue;

(6)

The entry into, termination, or non-fulfillment by the entity of significant contracts;

(7)

The policies or procedures of the entity governing the treatment of non-public technical, financial, or other proprietary information of the entity;

(8)

The appointment or dismissal of officers or senior managers or, in the case of a partnership, the general partner;

(9)

The appointment or dismissal of employees with access to critical technology or other sensitive technology or classified U.S. Government information; or

(10)

The amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of the entity with respect to the matters described in paragraphs (a)(1) through (9) of this section.

(b)

In examining questions of control in situations where more than one foreign person has an ownership interest in an entity, consideration will be given to factors such as whether the foreign persons are related or have formal or informal arrangements to act in concert, whether they are agencies or instrumentalities of the national or subnational governments of a single foreign state, and whether a given foreign person and another person that has an ownership interest in the entity are both controlled by any of the national or subnational governments of a single foreign state.

(c)

The following minority shareholder protections shall not in themselves be deemed to confer control over an entity:

(1)

The power to prevent the sale or pledge of all or substantially all of the assets of an entity or a voluntary filing for bankruptcy or liquidation;

(2)

The power to prevent an entity from entering into contracts with majority investors or their affiliates;

(3)

The power to prevent an entity from guaranteeing the obligations of majority investors or their affiliates;

(4)

The right to purchase an additional interest in an entity to prevent the dilution of an investor's pro rata interest in that entity in the event that the entity issues additional instruments conveying interests in the entity;

(5)

The power to prevent the change of existing legal rights or preferences of the particular class of stock held by minority investors, as provided in the relevant corporate documents governing such shares; and

(6)

The power to prevent the amendment of the Articles of Incorporation, constituent agreement, or other organizational documents of an entity with respect to the matters described in paragraphs (c)(1) through (5) of this section.

(d)

The Committee will consider, on a case-by-case basis, whether minority shareholder protections other than those listed in paragraph (c) of this section do not confer control over an entity.

(e)

Examples—

(1)

Example 1. Corporation A is a U.S. business. A U.S. investor owns 50 percent of the voting interest in Corporation A, and the remaining voting interest is owned in equal shares by five unrelated foreign investors. The foreign investors jointly financed their investment in Corporation A and vote as a single block on matters affecting Corporation A. The foreign investors have an informal arrangement to act in concert with regard to Corporation A, and, as a result, the foreign investors control Corporation A.

(2)

Example 2. Same facts as the example in paragraph (e)(1) of this section with regard to the composition of Corporation A's shareholders. The foreign investors in Corporation A have no contractual or other commitments to act in concert, and have no informal arrangements to do so. Assuming no other relevant facts, the foreign investors do not control Corporation A.

(3)

Example 3. Corporation A, a foreign person, is a private equity fund that routinely acquires equity interests in companies and manages them for a period of time. Corporation B is a U.S. business. In addition to its acquisition of seven percent of Corporation B's voting shares, Corporation A acquires the right to terminate significant contracts of Corporation B. Corporation A controls Corporation B.

(4)

Example 4. Corporation A, a foreign person, acquires a nine percent interest in the shares of Corporation B, a U.S. business. As part of the transaction, Corporation A also acquires certain veto rights that determine important matters affecting Corporation B, including the right to veto the dismissal of senior executives of Corporation B. Corporation A controls Corporation B.

(5)

Example 5. Corporation A, a foreign person, acquires a 13 percent interest in the shares of Corporation B, a U.S. business, and the right to appoint one member of Corporation B's seven-member board of directors. Corporation A receives minority shareholder protections listed in paragraph (c) of this section but receives no other positive or negative rights with respect to Corporation B. Assuming no other relevant facts, Corporation A does not control Corporation B.

(6)

Example 6. Corporation A, a foreign person, acquires a 20 percent interest in the shares of Corporation B, a U.S. business. Corporation A has negotiated an irrevocable passivity agreement that completely precludes it from controlling Corporation B. Corporation A does, however, receive the right to prevent Corporation B from entering into contracts with majority investors or their affiliates and to prevent Corporation B from guaranteeing the obligations of majority investors or their affiliates. Assuming no other relevant facts, Corporation A does not control Corporation B.

(7)

Example 7. Limited Partnership A comprises two limited partners, each of which holds 49 percent of the interest in the partnership, and a general partner, which holds two percent of the interest. The general partner has sole authority to determine, direct, and decide all important matters affecting the partnership and a fund operated by the partnership. The general partner alone controls Limited Partnership A and the fund.

(8)

Example 8. Same facts as the example in paragraph (e)(7) of this section, except that each of the limited partners has the authority to veto major investments proposed by the general partner and to choose the fund's representatives on the boards of the fund's portfolio companies. The general partner and the limited partners each have control over Limited Partnership A and the fund.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.209. Conversion.

31 C.F.R. § 800.209

The term conversion means the exercise of a right inherent in the ownership or holding of a particular financial instrument to exchange any such instrument for an equity interest.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.210. Covered control transaction.

31 C.F.R. § 800.210

The term covered control transaction means any transaction that is proposed or pending after August 23, 1988, by or with any foreign person that could result in foreign control of any U.S. business, including such a transaction carried out through a joint venture.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.211. Covered investment.

31 C.F.R. § 800.211

The term covered investment means an investment, direct or indirect, by a foreign person other than an excepted investor, in an unaffiliated TID U.S. business that is proposed or pending on or after February 13, 2020, and that:

(a)

Is not a covered control transaction; and

(b)

Affords the foreign person—

(1)

Access to any material nonpublic technical information in the possession of the TID U.S. business;

(2)

Membership or observer rights on, or the right to nominate an individual to a position on, the board of directors or equivalent governing body of the TID U.S. business; or

(3)

Any involvement, other than through voting of shares, in substantive decisionmaking of the TID U.S. business regarding:

(i)

The use, development, acquisition, safekeeping, or release of sensitive personal data of U.S. citizens maintained or collected by the TID U.S. business;

(ii)

The use, development, acquisition, or release of critical technologies; or

(iii)

The management, operation, manufacture, or supply of covered investment critical infrastructure.

(c)

Notwithstanding paragraphs (a) and (b) of this section, no investment involving an air carrier, as defined in 49 U.S.C. 40102(a)(2), that holds a certificate issued under 49 U.S.C. 41102 shall be a covered investment.

(d)

Example— Corporation A, a foreign person that is not an excepted investor, makes a non-controlling investment in Corporation B, a U.S. business, that affords Corporation A the right to nominate one of the directors on Corporation B's board of directors. Corporation B, through its wholly-owned subsidiary Corporation X, designs and manufactures a critical technology. Corporation A's investment in Corporation B is a covered investment.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.212. Covered investment critical infrastructure.

31 C.F.R. § 800.212

The term covered investment critical infrastructure means, in the context of a particular covered investment, the systems and assets, whether physical or virtual, set forth in column 1 of appendix A to this part.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.213. Covered transaction.

31 C.F.R. § 800.213

The term covered transaction means any of the following:

(a)

A covered control transaction;

(b)

A covered investment;

(c)

A change in the rights that a foreign person has with respect to a U.S. business in which the foreign person has an investment, if that change could result in a covered control transaction or a covered investment; or

(d)

Any other transaction, transfer, agreement, or arrangement, the structure of which is designed or intended to evade or circumvent the application of section 721.

(e)

Examples—

(1)

Example 1. Corporation A, a foreign person, acquires a 10 percent non-controlling equity interest in Corporation X, a U.S. business. Corporation X subsequently provides Corporation A the right to appoint the Chief Executive Officer and the Chief Technical Officer of Corporation X. Corporation A does not acquire any additional equity interest in Corporation X. Assuming no other relevant facts, the change in rights is a covered transaction.

(2)

Example 2. Corporation A, a foreign person that is not an excepted investor, acquires a 10 percent non-controlling equity interest in Corporation X, an unaffiliated TID U.S. business, but Corporation A is not afforded any of the access, rights, or involvement specified in § 800.211(b) at the time of its investment. Corporation X later expands its board of directors and provides Corporation A with the right to appoint a director. Assuming no other relevant facts, the change in rights is a covered transaction.

(3)

Example 3. Corporation A is organized under the laws of a foreign state and is wholly owned and controlled by a foreign national. With a view towards circumventing section 721, Corporation A transfers money to a U.S. citizen, who, pursuant to informal arrangements with Corporation A and on its behalf, purchases all the shares in Corporation X, a U.S. business. The transaction is a covered transaction.

(4)

Example 4. Corporation A is organized under the laws of a foreign state, is wholly owned and controlled by a foreign national, and is not an excepted investor. With a view towards circumventing section 721, Corporation A transfers money to a U.S. citizen, who, pursuant to informal arrangements with Corporation A and on its behalf, makes a non-controlling minority equity investment in Corporation X, an unaffiliated TID U.S. business that maintains and collects sensitive personal data of U.S. citizens. In connection with the investment, the U.S. citizen is afforded the right to be involved in substantive decisionmaking regarding the release of sensitive personal data of U.S. citizens maintained by Corporation X. The transaction is a covered transaction.

Notes, amendments, and revision history

Amendments

[85 FR 3124, Jan. 17, 2020, as amended at 85 FR 57128, Sept. 15, 2020]

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

Amendments

[85 FR 3124, Jan. 17, 2020, as amended at 85 FR 57128, Sept. 15, 2020]

§800.214. Critical infrastructure.

31 C.F.R. § 800.214

The term critical infrastructure means, in the context of a particular covered control transaction, systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems or assets would have a debilitating impact on national security.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.215. Critical technologies.

31 C.F.R. § 800.215

The term critical technologies means the following:

(a)

Defense articles or defense services included on the United States Munitions List (USML) set forth in the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130);

(b)

Items included on the Commerce Control List (CCL) set forth in Supplement No. 1 to part 774 of the Export Administration Regulations (EAR) (15 CFR parts 730-774), and controlled—

(1)

Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or

(2)

For reasons relating to regional stability or surreptitious listening;

(c)

Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by 10 CFR part 810 (relating to assistance to foreign atomic energy activities);

(d)

Nuclear facilities, equipment, and material covered by 10 CFR part 110 (relating to export and import of nuclear equipment and material);

(e)

Select agents and toxins covered by 7 CFR part 331, 9 CFR part 121, or 42 CFR part 73; and

(f)

Emerging and foundational technologies controlled under section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.216. Encrypted data.

31 C.F.R. § 800.216

The term encrypted data means data to which National Institute of Standards and Technology (NIST)-allowed cryptographic techniques, as identified in the most current NIST special publication 800-175B, or superseding publication, have been applied.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.217. Entity.

31 C.F.R. § 800.217

The term entity means any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization (whether or not organized under the laws of any State or foreign state); assets (whether or not organized as a separate legal entity) operated by any one of the foregoing as a business undertaking in a particular location or for particular products or services; and any government (including a foreign national or subnational government, the U.S. Government, a subnational government within the United States, and any of their respective departments, agencies, or instrumentalities). (See examples in § 800.301(g)(5) through (14) and § 800.302(g)(5) through (10).)

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.218. Excepted foreign state.

31 C.F.R. § 800.218

The term excepted foreign state means, until February 13, 2023, a foreign state that meets the criteria in paragraph (a) of this section, and, beginning on February 13, 2023, a foreign state that meets both the criteria in paragraphs (a) and (b) of this section:

(a)

Is identified by the Committee as an eligible foreign state, and

(b)

Is a foreign state for which the Committee has made a determination under § 800.1001(a).

Notes, amendments, and revision history

Amendments

[85 FR 3124, Jan. 17, 2020, as amended at 87 FR 732, Feb. 4, 2022]

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

Amendments

[85 FR 3124, Jan. 17, 2020, as amended at 87 FR 732, Feb. 4, 2022]

§800.219. Excepted investor.

31 C.F.R. § 800.219

(a)

The term excepted investor means a foreign person who is, as of the completion date of the transaction and subject to paragraphs (c) and (d) of this section:

(1)

A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(2)

A foreign government of an excepted foreign state; or

(3)

An entity that meets each of the following conditions with respect to itself and each of its parents (if any):

(i)

Such entity is organized under the laws of an excepted foreign state or in the United States;

(ii)

Such entity has its principal place of business in an excepted foreign state or in the United States;

(iii)

Seventy-five percent or more of the members and 75 percent or more of the observers of the board of directors or equivalent governing body of such entity are:

(A)

U.S. nationals; or

(B)

Nationals of one or more excepted foreign states who are not also nationals of any foreign state that is not an excepted foreign state;

(iv)

Any foreign person that individually, and each foreign person that is part of a group of foreign persons that in the aggregate, holds 10 percent or more of the outstanding voting interest of such entity; holds the right to 10 percent or more of the profits of such entity; holds the right in the event of dissolution to 10 percent or more of the assets of such entity; or otherwise could exercise control over such entity, is:

(A)

A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(B)

A foreign government of an excepted foreign state; or

(C)

An entity that is organized under the laws of an excepted foreign state or in the United States and has its principal place of business in an excepted foreign state or in the United States; and

(v)

The minimum excepted ownership of such entity is held, individually or in the aggregate, by one or more persons each of whom is:

(A)

Not a foreign person;

(B)

A foreign national who is a national of one or more excepted foreign states and is not also a national of any foreign state that is not an excepted foreign state;

(C)

A foreign government of an excepted foreign state; or

(D)

An entity that is organized under the laws of an excepted foreign state or in the United States and has its principal place of business in an excepted foreign state or in the United States.

(b)

For purposes of paragraph (a)(3)(iv) of this section, foreign persons who are related, have formal or informal arrangements to act in concert, or are agencies or instrumentalities of, or controlled by, the national or subnational governments of a single foreign state are considered part of a group of foreign persons and their individual ownerships are aggregated.

(c)

Notwithstanding paragraph (a) of this section, a foreign person is not an excepted investor with respect to a transaction if:

(1)

In the five years prior to the completion date of the transaction the foreign person, any of its parents, or any entity of which it is a parent:

(i)

Has received written notice from the Committee that it has submitted a material misstatement or omission in a notice or declaration or made a false certification under this part or part 801 or 802 of this title;

(ii)

Has received written notice from the Committee that it has violated a material provision of a mitigation agreement entered into with, material condition imposed by, or an order issued by, the Committee or a lead agency under section 721(l);

(iii)

Has been subject to action by the President under section 721(d);

(iv)

Has—

(A)

Received a written Finding of Violation or Penalty Notice imposing a civil monetary penalty from the Department of the Treasury, Office of Foreign Assets Control (OFAC); or

(B)

Entered into a settlement agreement with OFAC with respect to apparent violations of U.S. sanctions laws administered by OFAC, including the International Emergency Economic Powers Act, the Trading With the Enemy Act, the Foreign Narcotics Kingpin Designation Act, each as amended, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(v)

Has received a written notice of debarment from the Department of State, Directorate of Defense Trade Controls, as described in 22 CFR parts 127 and 128;

(vi)

Has been a respondent or party in a final order, including a settlement order, issued by the Department of Commerce, Bureau of Industry and Security (BIS) regarding violations of U.S. export control laws administered by BIS, including the Export Control Reform Act of 2018 (50 U.S.C. 4801 et seq.), the EAR, or of any executive order, regulation, order, directive, or license issued pursuant thereto;

(vii)

Has received a final decision from the Department of Energy, National Nuclear Security Administration imposing a civil penalty with respect to a violation of section 57b. of the Atomic Energy Act of 1954, as implemented under 10 CFR part 810; or

(viii)

Has been convicted of, or has entered into a deferred prosecution agreement or non-prosecution agreement with the Department of Justice with respect to, any felony in any jurisdiction within the United States; or

(2)

The foreign person, any of its parents, or any entity of which it is a parent is, on the date on which the parties to the transaction first execute a binding written agreement, or other binding document, establishing the material terms of the transaction, listed on either the BIS Unverified List or Entity List in 15 CFR part 744.

(d)

Irrespective of whether the foreign person satisfies the criteria in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section as of the completion date, if at any time during the three-year period following the completion date, the foreign person no longer meets all the criteria set forth in paragraph (a)(1) or (2), (a)(3)(i) through (iii), or (c)(1)(i) through (iii) of this section, the foreign person is not an excepted investor with respect to the transaction from the completion date onward. This paragraph does not apply when an excepted investor no longer meets any of the criteria solely due to a rescission of a determination under § 800.1001(b) or if the relevant foreign state otherwise ceases to be an excepted foreign state.

(e)

A foreign person may waive its status as an excepted investor with respect to a transaction at any time by submitting a declaration under § 800.403 or filing a notice under § 800.501 regarding the transaction in which it explicitly waives such status. In such case, the foreign person will be deemed not to be an excepted investor with respect to the transaction and the relevant provisions of subpart D or E will apply.

Notes, amendments, and revision history

Amendments

[85 FR 3124, Jan. 17, 2020; 85 FR 8747, Feb. 18, 2020]

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

Amendments

[85 FR 3124, Jan. 17, 2020; 85 FR 8747, Feb. 18, 2020]

§800.220. Foreign entity.

31 C.F.R. § 800.220

(a)

The term foreign entity means any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization organized under the laws of a foreign state if either its principal place of business is outside the United States or its equity securities are primarily traded on one or more foreign exchanges.

(b)

Notwithstanding paragraph (a) of this section, any branch, partnership, group or sub-group, association, estate, trust, corporation or division of a corporation, or organization that can demonstrate that a majority of the equity interest in such entity is ultimately owned by U.S. nationals is not a foreign entity.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.221. Foreign government.

31 C.F.R. § 800.221

The term foreign government means any government or body exercising governmental functions, other than the U.S. Government or a subnational government of the United States. The term includes, but is not limited to, national and subnational governments, including their respective departments, agencies, and instrumentalities.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.222. Foreign government-controlled transaction.

31 C.F.R. § 800.222

The term foreign government-controlled transaction means any covered control transaction that could result in control of a U.S. business by a foreign government or a person controlled by or acting on behalf of a foreign government.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.223. Foreign national.

31 C.F.R. § 800.223

The term foreign national means any individual other than a U.S. national.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.224. Foreign person.

31 C.F.R. § 800.224

(a)

The term <I>foreign person</I> means—

(1)

Any foreign national, foreign government, or foreign entity; or

(2)

Any entity over which control is exercised or exercisable by a foreign national, foreign government, or foreign entity.

(b)

Any entity over which control is exercised or exercisable by a foreign person is a foreign person.

(c)

Examples—

(1)

Example 1. Corporation A is organized under the laws of a foreign state and is engaged in business only outside the United States. All of its shares are held by Corporation X, which solely controls Corporation A. Corporation X is organized in the United States and is wholly owned and controlled by U.S. nationals. Assuming no other relevant facts, Corporation A, although organized and operating only outside the United States, is not a foreign entity due to § 800.220(b) and is not a foreign person.

(2)

Example 2. Same facts as the first sentence of the example in paragraph (c)(1) of this section. The government of the foreign state under whose laws Corporation A is organized exercises control over Corporation A because a law establishing Corporation A gives the foreign state the right to appoint Corporation A's board members. Corporation A is a foreign person.

(3)

Example 3. Corporation A is organized in the United States, is engaged in interstate commerce in the United States, and is controlled by Corporation X. Corporation X is organized under the laws of a foreign state, its principal place of business is located outside the United States, and 50 percent of its shares are held by foreign nationals and 50 percent of its shares are held by U.S. nationals. Both Corporation A and Corporation X are foreign persons. Corporation A is also a U.S. business.

(4)

Example 4. Corporation A is organized under the laws of a foreign state and is owned and controlled by a foreign national. A branch of Corporation A engages in interstate commerce in the United States. Corporation A (including its branch) is a foreign person. The branch is also a U.S. business.

(5)

Example 5. Corporation A is organized under the laws of a foreign state and its principal place of business is located outside the United States. Forty-five percent of the equity interest in Corporation A is owned in equal shares by numerous unrelated foreign investors, none of whom has control. The foreign investors have no formal or informal arrangement with any other holder of equity interest in Corporation A to act in concert regarding Corporation A. Corporation A can demonstrate that the remainder of the equity interest in Corporation A is ultimately held by U.S. nationals. Assuming no other relevant facts, Corporation A is not a foreign entity or foreign person.

(6)

Example 6. Same facts as the example in paragraph (c)(5) of this section, except that one of the foreign investors, a foreign national, controls Corporation A. Assuming no other relevant facts, Corporation A is not a foreign entity due to § 800.220(b), but it is a foreign person under paragraph (a)(2) of this section because it is controlled by a foreign national.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.225. Hold.

31 C.F.R. § 800.225

The terms hold(s) and holding mean legal or beneficial ownership, whether direct or indirect, whether through fiduciaries, agents, or other means.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.226. Identifiable data.

31 C.F.R. § 800.226

The term identifiable data means data that can be used to distinguish or trace an individual's identity, including through the use of any personal identifier. Aggregated data or anonymized data is identifiable data if any party to the transaction has, or as a result of the transaction will have, the ability to disaggregate or de-anonymize the data, or if the data is otherwise capable of being used to distinguish or trace an individual's identity. Identifiable data does not include encrypted data, unless the U.S. business that maintains or collects the encrypted data has the means to de-encrypt the data so as to distinguish or trace an individual's identity.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.227. Investment.

31 C.F.R. § 800.227

The term investment means the acquisition of equity interest, including contingent equity interest.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.

§800.228. Investment fund.

31 C.F.R. § 800.228

The term investment fund means any entity that is an “investment company,” as defined in section 3(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-1 et seq.), or would be an “investment company” but for one or more of the exemptions provided in section 3(b) or 3(c) thereunder.

Notes, amendments, and revision history

Authority

Authority: 50 U.S.C. 4565; E.O. 11858, as amended, 73 FR 4677.

Source

Source: 85 FR 3124, Jan. 17, 2020, unless otherwise noted.