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Treasury Issues Long-Awaited Proposed CFIUS Regulations

September 30, 2019


On September 17, 2019, the Department of the Treasury issued two sets of proposed regulations implementing the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA).  As described in our prior alerts—CFIUS Update: Congress Enacts the Foreign Investment Risk Review Modernization Act and CFIUS Update: Interim Regulations, FIRRMA Pilot Program, and Proposed Rulemaking on Emerging Technologies—FIRRMA, enacted in August 2018, expanded and clarified CFIUS’s authority in various ways, including jurisdiction to review certain non-controlling investments in US businesses.  CFIUS issued interim regulations in October 2018, implementing parts of FIRRMA and a new FIRRMA Pilot Program that requires parties to declare some types of such transactions to CFIUS.

Treasury’s release of the proposed regulations heralds the first wholesale revamping of CFIUS regulations since 2008.  During the past decade, the sources, levels, and nature of foreign direct investments in the US have changed dramatically.  One consequence is a profound shift in US government thinking about the threats and vulnerabilities arising from foreign capital that has traditionally been welcomed.  Congress enacted FIRRMA to better align CFIUS’s authority and rules with the emerging threat landscape.

The Pilot Program rules aim to provide CFIUS with visibility into foreign investments in certain critical technology businesses, particularly where a foreign investor acquires a small, non-controlling stake.  The newly proposed regulations would largely implement the remaining provisions of FIRRMA; a notable exception is authority for CFIUS to charge filing fees, which CFIUS will address at a later time.  The proposed regulations do not further address the FIRRMA Pilot Program, which is authorized until March 5, 2020.

The first set of proposed rules would amend the current CFIUS regulations (Part 800 Regulations).  They primarily focus on the expansion of CFIUS jurisdiction to non-controlling investments (covered investments) in certain US businesses in the critical technology, critical infrastructure, and sensitive personal data industries (TID [Technology, Infrastructure, Data] US businesses).  The second set of proposed rules solely addresses FIRRMA’s new jurisdiction over certain real estate transactions.

The documents comprising the proposed rules number over 300 pages.  We address the key concepts below.

Covered, Non-controlling Investments

Consistent with the FIRRMA Pilot Program, “covered investments” are transactions that afford a foreign person (1) access to material non-public technical information about the TID US business; (2) membership or observer rights on the TID US business’s board of directors; or (3) involvement in substantive decision making of the TID US business relating to critical technology, critical infrastructure, or sensitive personal data.  The Part 800 Regulations do not alter CFIUS’s jurisdiction over transactions in which a foreign person acquires “control” of any US business.

1. TID US Businesses

The Part 800 Regulations define the scope of each of the TID US businesses.

Critical Technology:  FIRRMA expanded CFIUS jurisdiction to “covered investments” in US businesses that produce, design, test, manufacture, fabricate, or develop one or more critical technologies.  Consistent with the definition of “critical technologies” in the FIRRMA Pilot Program regulations,1 “critical technologies” means items controlled pursuant to: (1) the International Traffic in Arms Regulations; (2) certain controls of the Export Administration Regulations; (3) nuclear-related equipment and materials; (4) select agents and toxins; and (5) “emerging and foundational technologies” specified in a parallel rulemaking by the Commerce Department pursuant to the Export Control Reform Act of 2018.2

Critical Infrastructure:  FIRRMA expanded CFIUS jurisdiction to “covered investments” in a US business that “owns, operates, manufactures, supplies, or services critical infrastructure.”  The Part 800 Regulations refer to these activities as “functions.”  CFIUS jurisdiction is limited to functions related to specific types of critical infrastructure (e.g., internet exchanges, submarine cables, airports, oil and gas infrastructure, maritime ports, defense industrial resources, public water systems).  Both the specific types of critical infrastructure and the relevant functions are identified in Appendix A to the Part 800 Regulations (see below).  A US business only falls within the scope of a “covered investment,” if it performs a function listed in column 2 of Appendix A with respect to the corresponding critical infrastructure listed in column 1 of Appendix A.

Sensitive Personal Data:  FIRRMA expanded CFIUS jurisdiction to “covered investments” in a US business that maintains or collects sensitive personal data of US citizens “that may be exploited in a manner that threatens to harm national security.”  The Part 800 Regulations define sensitive personal data as:

(1) either genetic information or 

(2) “identifiable data” (i.e., data used to distinguish an individual’s identity) that are maintained or collected by a (a) US business that either (i) targets or tailors its products or services to sensitive US Government personnel or contractors, (ii) maintains or collects data on greater than one million individuals, or (iii) has a business objective to maintain or collect data on greater than one million individuals and such data are an integrated part of the US businesses products and services;
and
(b) the data fall within one of a number of categories, including: (i) data used to analyze an individual’s financial hardship, (ii) consumer reports, (iii) insurance applications, (iv) health; and (v) geolocation.

2. Excepted Investments

The Part 800 Regulations also introduce the concept of “excepted investors,” to whom CFIUS’s expanded jurisdiction over “covered investments” will not apply.  The scope of the exception is limited to foreign persons with a substantial connection to one or more foreign states that will be separately identified by the Treasury Department.  The Part 800 Regulations indicate that the initial list of “excepted foreign states” will be limited and will take into account the foreign state’s own foreign investment review process and cooperation with the United States regarding investment security matters.

Mandatory Declarations

The Part 800 Regulations implement FIRRMA’s authorization of a short-form declaration process for both mandatory and voluntary filings.  As with the current FIRRMA Pilot Program declarations,3 CFIUS can respond to a voluntary declaration in one of four ways: (1) request the parties file a formal notice; (2) unilaterally initiate a review of the transaction; (3) clear the transaction; or (4) determine that it is unable to make a determination on the basis of the declaration. 

Per FIRRMA, declarations will be mandatory for “covered transactions” (e.g., both covered control transactions and covered investments) in which a foreign person obtains a “substantial interest” in a TID US business and a foreign government has a “substantial interest” in that foreign person.4  The Part 800 Regulations establish the threshold for the foreign person’s “substantial interest” as a 25% voting interest, direct or indirect, and the foreign government’s “substantial interest” as a 49% or more voting interest, direct or indirect.

Real Estate Transactions

In parallel with the Part 800 Regulations, the Treasury Department issued proposed regulations implementing FIRRMA’s expansion of CFIUS jurisdiction to review certain real estate transactions in the US, referred to as “covered real estate transactions” (Part 802 Regulations).  Prior to FIRRMA, CFIUS jurisdiction encompassed acquisitions of real estate only where the transaction involved foreign acquisition of control of a US business.  That remains the case: transactions involving real estate may still be treated as “covered transactions” under the Part 800 Regulations—for example, transactions involving long-term leases and other assets, or where the US business is in proximity to sensitive US government facilities.  The Part 802 Regulations implement FIRRMA’s extension of jurisdiction to stand-alone real estate investments.  In CFIUS’s view, the level of specificity required to review such “covered real estate transactions” warrants a separate rulemaking process. 

The scope of CFIUS jurisdiction is framed by the proposed definitions identifying the types of real estate and real estate transactions that are covered by the Part 802 Regulations, and those that are not.  In sum:

1) “Covered real estate” is only real estate in close proximity to airport and maritime ports, and certain military installations.  The list of military installations are specifically identified in Appendix A to the Part 802 Regulations, which categorize the sites into four categories: (1) real estate within close proximity (i.e. one mile); (2) real estate in an extended range (between one and 100 miles); (3) real estate within specific counties in Colorado, Montana, Nebraska, North Dakota, and Wyoming, which are near air force base missile fields; and (4) real estate within an off-shore military range.

2) “Covered real estate transactions” are purchases or leases by, or concessions to, a foreign person (other than “excepted real estate transactions”) that afford a foreign person at least three “property rights” in “covered real estate.”  “Property rights” include the right to physically access, exclude, improve, or develop, or attach structures or objects to the real estate.

3) Excepted real estate transactions include (i) investments by investors from specified foreign states, which will be identified by the Treasury Department, (ii) certain transactions in urbanized areas, (iii) single housing units, and (iv) retail and commercial office space.

Public Comment Period

The Treasury Department is providing only 30 days for submission of comments on the proposed regulations.  It will publish final rules by February 13, 2020.


Proposed Appendix A to 31 C.F.R. Part 800

Column 1 - Covered investment critical infrastructure

Column 2 - Functions related to covered investment critical infrastructure

(i)  Any:

(a)  internet protocol network that has access to every other internet protocol network solely via settlement-free peering; or

(b)  telecommunications service or information service, each as defined in section 3(a)(2) of the Communications Act of 1934 (47 U.S.C. 153), as amended, or fiber optic cable that directly serves any military installation identified in § 802.229.

(i)  Own or operate any:

(a)  internet protocol network that has access to every other internet protocol network solely via settlement-free peering; or

(b)  telecommunications service or information service, each as defined in section 3(a)(2) of the Communications Act of 1934 (47 U.S.C. 153), as amended, or fiber optic cable that directly serves any military installation identified in § 802.229.

(ii)  Any internet exchange point that supports public peering.

(ii)  Own or operate any internet exchange point that supports public peering.

(iii)  Any submarine cable system requiring a license pursuant to section 1 of the Cable Landing Licensing Act of 1921 (47 U.S.C. 34), as amended, which includes any associated submarine cable, submarine cable landing facilities, and any facility that performs network management, monitoring, maintenance, or other operational functions for such submarine cable system.

(iii)  Own or operate any submarine cable system requiring a license pursuant to section 1 of the Cable Landing Licensing Act of 1921 (47 U.S.C. 34), as amended, which includes any associated submarine cable, submarine cable landing facilities, and any facility that performs network management, monitoring, maintenance, or other operational functions for such submarine cable system.

(iv)  Any submarine cable, landing facility, or facility that performs network management, monitoring, maintenance, or other operational function that is part of a submarine cable system described above in item (iii) of Column 1 of appendix A to part 800.

(iv)  Supply or service any submarine cable, landing facility, or facility that performs network management, monitoring, maintenance, or other operational function that is part of a submarine cable system described above in item (iii) of Column 1 of appendix A to part 800.

(v)  Any data center that is collocated at a submarine cable landing point, landing station, or termination station.

(v)  Own or operate any data center that is collocated at a submarine cable landing point, landing station, or termination station.

(vi)  Any satellite or satellite system providing services directly to the Department of Defense or any component thereof.

(vi)  Own or operate any satellite or satellite system providing services directly to the Department of Defense or any component thereof.

(vii)  Any industrial resource other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996 (41 U.S.C. 104), as amended, that is manufactured or operated for a Major Defense Acquisition Program, as defined in section 7(b)(2)(A) of the Defense Technical Corrections Act of 1987 (10 U.S.C. 2430), as amended, or a Major System, as defined in 10 U.S.C. 2302d, as amended and:


(a)  the US business is a "single source," "sole source," or "strategic multisource" to the extent the US business has been notified of such status; or


(b)  the industrial resource:


(1)  requires 12 months or more to manufacture; or


(2)  is a “long lead” item, to the extent the US business has been notified that such industrial resource is a “long lead” item.

(vii)  As applicable, manufacture of any industrial resource other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996 (41 U.S.C. 104), as amended, or operate any industrial resource that is a facility, in each case, for a Major Defense Acquisition Program, as defined in section 7(b)(2)(A) of the Defense Technical Corrections Act of 1987 (10 U.S.C. 2430), as amended, or a Major System, as defined in 10 U.S.C. 2302d, as amended and:

(a)  the US business is a “single source,”

“sole source,” or “strategic multisource,” to the extent the US business has been notified of such status; or

(b)  the industrial resource:

(1)  requires 12 months or more to manufacture; or

(2)  is a “long lead” item, to the extent the US business has been notified that such industrial resource is a “long lead” item.

(viii)  Any industrial resource, other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996 (41 U.S.C. 104), as amended, that is manufactured pursuant to a “DX” priority-rated contract or order under the Defense Priorities and Allocations System regulation (15 CFR part 700, as amended) in the preceding 24 months.

(viii)  Manufacture of any industrial resource, other than commercially available off-the-shelf items, as defined in section 4203(a) of the National Defense Authorization Act for Fiscal Year 1996 (41 U.S.C. 104), as amended, pursuant to a “DX” priority-rated contract or order under the Defense Priorities and Allocations System regulation (15 CFR part 700, as amended) within 24 months of the transaction in question.

(ix)  Any facility in the United States that manufactures:


(a)  specialty metal, as defined in section 842(a)(1)(i) of the John Warner National Defense Authorization Act for Fiscal Year 2007 (10 U.S.C. 2533b), as amended;


(b)  covered material, as defined in 10 U.S.C. 2533c, as amended;


(c)  chemical weapons antidote contained in automatic injectors, as described in 10 U.S.C. 2534, as amended; or


(d)  carbon, alloy, and armor steel plate that is in Federal Supply Class 9515 or is described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute.

(ix)  Manufacture of any of the following in the United States:

(a)  specialty metal, as defined in section 842(a)(1)(i) of the John Warner National Defense Authorization Act for Fiscal Year 2007 (10 U.S.C. 2533b), as amended;

(b)  covered material, as defined in 10 U.S.C. 2533c, as amended;

(c)  chemical weapons antidote contained in automatic injectors, as described in 10 U.S.C. 2534, as amended; or

(d)  carbon, alloy, and armor steel plate that is in Federal Supply Class 9515 or is described by specifications of the American Society for Testing Materials or the American Iron and Steel Institute.

(x)  Any industrial resource other than commercially available off-the-shelf items, as defined in 41 U.S.C. 104, as amended, that has been funded, in whole or in part, by any of the following sources in the last 60 months:


(a)   Defense Production Act of 1950 Title III program (50 U.S.C 4501, et seq.), as amended;


(b)   Industrial Base Fund pursuant to section 896(b)(1) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2508), as amended;


(c)   Rapid Innovation Fund pursuant to section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2359a), as amended;


(d)  Manufacturing Technology Program pursuant to 10 U.S.C. 2521, as amended;


(e)  Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program – Manage the WarStopper Program; or


(f)  Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.

(x)  As applicable, manufacture of any industrial resource other than commercially available off-the-shelf items, as defined in 41 U.S.C. 104, as amended, or operate any industrial resource that is a facility, in each case, that has been funded, in whole or in part, by any of the following sources within 60 months of the transaction in question:

(a)  Defense Production Act of 1950 Title III program (50 U.S.C. 4501, et seq.), as amended;

(b)  Industrial Base Fund pursuant to section 896(b)(1) of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2508), as amended;

(c)  Rapid Innovation Fund pursuant to section 1073 of Ike Skelton National Defense Authorization Act for Fiscal Year 2011 (10 U.S.C. 2359a), as amended;

(d)  Manufacturing Technology Program pursuant to 10 U.S.C. 2521, as amended;

(e)  Defense Logistics Agency Warstopper Program, as described in DLA Instruction 1212, Industrial Capabilities Program – Manage the WarStopper Program; or

(f)  Defense Logistics Agency Surge and Sustainment contract, as described in Subpart 17.93 of the Defense Logistics Acquisition Directive.

(xi)  Any system, including facilities, for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, as defined in section 215(a)(1) of the Federal Power Act (16 U.S.C. 824o(a)(1)), as amended.

(xi) Own or operate any system, including facilities, for the generation, transmission, distribution, or storage of electric energy comprising the bulk-power system, as defined in section 215(a)(1) of the Federal Power Act (16 U.S.C. 824o(a)(1)), as amended.

(xii)  Any electric storage resource, as defined in 18 CFR § 35.28(b)(9), as amended, that is physically connected to the bulk-power system.

(xii)  Own or operate any electric storage resource, as defined in 18 CFR § 35.28(b)(9), as amended, that is physically connected to the bulk-power system.

(xiii)  Any facility that provides electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.229.

(xiii)  Own or operate any facility that provides electric power generation, transmission, distribution, or storage directly to or located on any military installation identified in § 802.229.

(xiv)  Any industrial control system utilized by:


(a)  system comprising the bulk-power system as described above in item (xi) of Column 1 of appendix A to part 800; or (b)  a facility directly serving any military installation as described above in item (xiii) of Column 1 of appendix A to part 800.

(xiv)  Manufacture or service of any industrial-control system utilized by:

(a)  system comprising the bulk-power system as described above in item (xi) of Column 1 of appendix A to part 800; or (b) a facility directly serving any military installation as described above in item (xiii) of Column 1 of appendix A to part 800.

(xv)  Any:


(a)  individual refinery with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products; or


(b)  collection of one or more refineries owned or operated by a single US business with the capacity to produce, in the aggregate, 500,000 or more barrels per day (or equivalent) of refined oil or gas products.

(xv)  Own or operate:

(a)  any individual refinery with the capacity to produce 300,000 or more barrels per day (or equivalent) of refined oil or gas products; or

(b)  one or more refineries with the capacity to produce, in the aggregate, 500,000 or more barrels per day (or equivalent) of refined oil or gas products.

(xvi)  Any crude oil storage facility with the capacity to hold 30 million barrels or more of crude oil.

(xvi)  Own or operate any crude oil storage facility with the capacity to hold 30 million barrels or more of crude oil.

(xvii)  Any:


(a)  liquefied natural gas (LNG) import or export terminal requiring:


(1)  approval pursuant to section 3(e) of the Natural Gas Act (15 U.S.C. 717b(e)), as amended, or


(2)  a license pursuant to section 4 of the Deepwater Port Act of 1974 (33 U.S.C. 1503), as amended; or


(b)  natural gas underground storage facility or LNG peak-shaving facility requiring a certificate of public convenience and necessity pursuant to section 7 of the Natural Gas Act (15 U.S.C. 717f), as amended.

(xvii)  Own or operate any:

(a)  liquefied natural gas (LNG) import or export terminal requiring:

(1)  approval pursuant to section 3(e) of the Natural Gas Act (15 U.S.C. 717b(e)), as amended, or

(2)  a license pursuant to section 4 of the Deepwater Port Act of 1974 (33 U.S.C. 1503), as amended; or

(b)  natural gas underground storage facility or LNG peak-shaving facility requiring a certificate of public convenience and necessity pursuant to section 7 of the Natural Gas Act (15 U.S.C. 717f), as amended.

(xviii)  Any financial market utility that the Financial Stability Oversight Council has designated as systemically important pursuant to section 804 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5463), as amended.

(xviii)  Own or operate any financial market utility that the Financial Stability Oversight Council has designated as systemically important pursuant to section 804 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (12 U.S.C. 5463), as amended.

(xix)  Any exchange registered under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f), as amended, that facilitates trading in any national market system security, as defined in 17 CFR § 242.600, as amended, and which exchange during at least four of the preceding six calendar months had:


(a)  with respect to all national market system securities that are not options, ten percent or more of the average daily dollar volume reported by applicable transaction reporting plans; or


(b)  with respect to all listed options, fifteen percent or more of the average daily dollar volume reported by applicable national market system plans for reporting transactions in listed options.

(xix)  Own or operate any exchange registered under section 6 of the Securities Exchange Act of 1934 (15 U.S.C. 78f), as amended, that facilitates trading in any national market system security, as defined in 17 CFR § 242.600, as amended, and which exchange during at least four of the preceding six calendar months had:

(a)  with respect to all national market system securities that are not options, ten percent or more of the average daily dollar volume reported by applicable transaction reporting plans; or

(b)  with respect to all listed options, fifteen percent or more of the average daily dollar volume reported by applicable national market system plans for reporting transactions in listed options.

(xx)  Any technology service provider in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provides core processing services.

(xx)  Own or operate any technology service provider in the Significant Service Provider Program of the Federal Financial Institutions Examination Council that provides core processing services.

(xxi) Any rail line and associated connector line designated as part of the Department of Defense’s Strategic Rail Corridor Network.

(xxi) Own or operate any rail line and associated connector line designated as part of the Department of Defense’s Strategic Rail Corridor Network.

(xxii)  Any interstate oil pipeline that:


(a)  has the capacity to transport:


(1)  500,000 barrels per day or more of crude oil, or 90 million gallons per day or more of refined petroleum product; or


(2)  (b) directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act (42 U.S.C. 6232), as amended.

(xxii)  Own or operate any interstate oil pipeline that:

(a)  has the capacity to transport:

(1)  500,000 barrels per day or more of crude oil, or

(2)  90 million gallons per day or more of refined petroleum product; or

(b)  directly serves the strategic petroleum reserve, as defined in section 152 of the Energy Policy and Conservation Act (42 U.S.C. 6232), as amended.

(xxiii)  Any interstate natural gas pipeline with an outside diameter of 20 or more inches.

(xxiii)  Own or operate any interstate natural gas pipeline with an outside diameter of 20 or more inches.

(xxiv)  Any industrial-control system utilized by:


(a)  an interstate oil pipeline as described above in item (xxii) of Column 1 of appendix A to part 800; or


(b)  an interstate natural gas pipeline as described above in item (xxiii) of Column 1 of appendix A to part 800.

(xxiv)  Manufacture or service of any industrial control system utilized by:

(a)  an interstate oil pipeline as described above in item (xxii) of Column 1 of appendix A to part 800; or

(b)  an interstate natural gas pipeline as described above in item (xxiii) of Column 1 of appendix A to part 800.

(xxv)  Any airport identified in § 802.201.

(xxv)  Own or operate any airport identified in § 802.201.

(xxvi)  Any:

(a)  maritime port identified in § 802.228; or

(b)  any individual terminal at such maritime ports.

(xxvi)  Own or operate any:

(a)  maritime port identified in § 802.228; or

(b)  any individual terminal at such maritime ports.

(xxvii)  Any public water system, as defined in section 1401(4) of the Safe Drinking Water Act (42 U.S.C. 300f(4)(A)), as amended, or treatment works, as defined in section 212(2)(A) of the Clean Water Act (33 U.S.C. 1292(2)), as amended, which:


(a)  regularly serves 10,000 individuals or more, or


(b)  directly serves any military installation identified in § 802.229.

(xxvii)  Own or operate any public water system, as defined in section 1401(4) of the Safe Drinking Water Act (42 U.S.C. 300f(4)(A)), as amended, or treatment works, as defined in section 212(2)(A) of the Clean Water Act (33 U.S.C. 1292(2)), as amended, which:

(a)  regularly serves 10,000 individuals or more, or

(b)  directly serves any military installation identified in § 802.229.

(xxviii)  Any industrial control system utilized by a public water system or treatment works as described above in item (xxvii) of Column 1 of appendix A to part 800.

(xxviii)  Manufacture or service of any industrial-control system utilized by a public water system or treatment works as described above in item (xxvii) of Column 1 of appendix A to part 800.

Proposed Appendix A to 31 C.F.R. Part 802

Part 1

Site Name

Location

Adelphi Laboratory Center

Adelphi, MD

Air Force Maui Optical and Supercomputing Site

Maui, HI

Air Force Office of Scientific Research

Arlington, VA

Andersen Air Force Base

Yigo, Guam

Army Futures Command

Austin, TX

Army Research Lab – Orlando Simulations and Training Technology Center

Orlando, FL

Army Research Lab – Raleigh Durham

Raleigh Durham, NC

Arnold Air Force Base

Coffee County and Franklin County, TN

Beale Air Force Base

Yuba City, CA

Biometric Technology Center (Biometrics Identity Management Activity)

Clarksburg, WV

Buckley Air Force Base

Aurora, CO

Camp MacKall

Pinebluff, NC

Cape Cod Air Force Station

Sandwich, MA

Cape Newenham Long Range Radar Site

Cape Newenham, AK

Cavalier Air Force Station

Cavalier, ND

Cheyenne Mountain Air Force Station

Colorado Springs, CO

Clear Air Force Station

Anderson, AK

Creech Air Force Base

Indian Springs, NV

Davis-Monthan Air Force Base

Tucson, AZ

Defense Advanced Research Projects Agency

Arlington, VA

Eareckson Air Force Station

Shemya, AK

Eielson Air Force Base

Fairbanks, AK

Ellington Field Joint Reserve Base

Houston, TX

Fairchild Air Force Base

Spokane, WA

Fort Benning

Columbus, GA

Fort Belvoir

Fairfax County, VA

Fort Bliss

El Paso, TX

Fort Campbell

Hopkinsville, KY

Fort Carson

Colorado Springs, CO

Fort Detrick

Frederick, MD

Fort Drum

Watertown, NY

Fort Gordon

Augusta, GA

Fort Hood

Killeen, TX

Fort Knox

Fort Knox, KY

Fort Leavenworth

Leavenworth, KS

Fort Lee

Petersburg, VA

Fort Leonard Wood

Pulaski County, MO

Fort Meade

Anne Arundel County, MD

Fort Riley

Junction City, KS

Fort Shafter

Honolulu, HI

Fort Sill

Lawton, OK

Fort Stewart

Hinesville, GA

Fort Yukon Long Range Radar Site

Fort Yukon, AK

Francis E. Warren Air Force Base

Cheyenne, WY

Guam Tracking Station

Inarajan, Guam

Hanscom Air Force Base

Lexington, MA

Holloman Air Force Base

Alamogordo, NM

Holston Army Ammunition Plant

Kingsport, TN

Joint Base Anacostia-Bolling

Washington, DC

Joint Base Andrews

Camp Springs, MD

Joint Base Elmendorf-Richardson

Anchorage, AK

Joint Base Langley-Eustis

Hampton, VA and Newport News, VA

Joint Base Lewis-McChord

Tacoma, WA

Joint Base McGuire-Dix-Lakehurst

Lakehurst, NJ

Joint Base Pearl Harbor-Hickam

Honolulu, HI

Joint Base San Antonio

San Antonio, TX

Joint Expeditionary Base Little Creek-Fort Story

Virginia Beach, VA

Kaena Point Satellite Tracking Station

Waianae, HI

King Salmon Air Force Station

King Salmon, AK

Kirtland Air Force Base

Albuquerque, NM

Kodiak Tracking Stations

Kodiak Island, AK

Los Angeles Air Force Base

El Segundo, CA

MacDill Air Force Base

Tampa, FL

Malmstrom Air Force Base

Great Falls, MT

Marine Corps Air Ground Combat Center Twentynine Palms

Twentynine Palms, CA

Marine Corps Air Station Beaufort

Beaufort, SC

Marine Corps Air Station Cherry Point

Cherry Point, NC

Marine Corps Air Station Miramar

San Diego, CA

Marine Corps Air Station New River

Jacksonville, NC

Marine Corps Air Station Yuma

Yuma, AZ

Marine Corps Base Camp Lejeune

Jacksonville, NC

Marine Corps Base Camp Pendleton

Oceanside, CA

Marine Corps Base Hawaii

Kaneohe Bay, HI

Marine Corps Base Hawaii, Camp H.M. Smith

Halawa, HI

Marine Corps Base Quantico

Quantico, VA

Mark Center

Alexandria, VA

Minot Air Force Base

Minot, ND

Moody Air Force Base

Valdosta, GA

National Capital Region Coordination Center

Herndon, VA

Naval Air Station Joint Reserve Base New Orleans

Belle Chasse, LA

Naval Air Station Oceana

Virginia Beach, VA

Naval Air Station Oceana Dam Neck Annex

Virginia Beach, VA

Naval Air Station Whidbey Island

Oak Harbor, WA

Naval Base Guam

Apra Harbor, Guam

Naval Base Kitsap Bangor

Silverdale, WA

Naval Base Point Loma

San Diego, CA

Naval Base San Diego

San Diego, CA

Naval Base Ventura County – Port Hueneme Operating Facility

Port Hueneme, CA

Naval Research Laboratory

Washington, DC

Naval Research Laboratory – Blossom Point

Welcome, MD

Naval Research Laboratory – Stennis Space Center

Hancock County, MS

Naval Research Laboratory – Tilghman

Tilghman, MD

Naval Station Newport

Newport, RI

Naval Station Norfolk

Norfolk, VA

Naval Submarine Base Kings Bay

Kings Bay, GA

Naval Submarine Base New London

Groton, CT

Naval Surface Warfare Center Carderock Division – Acoustic Research Detachment

Bayview, ID

Naval Support Activity Crane

Crane, IN

Naval Support Activity Orlando

Orlando, FL

Naval Support Activity Panama City

Panama City, FL

Naval Support Activity Philadelphia

Philadelphia, PA

Naval Support Facility Carderock

Bethesda, MD

Naval Support Facility Dahlgren

Dahlgren, VA

Naval Support Facility Indian Head

Indian Head, MD

Naval Weapons Station Seal Beach Detachment Norco

Norco, CA

New Boston Air Station

New Boston, NH

Offutt Air Force Base

Bellevue, NE

Oliktok Long Range Radar Site

Oliktok, AK

Orchard Combat Training Center

Boise, ID

Peason Ridge Training Area

Leesville, LA

Pentagon

Arlington, VA

Peterson Air Force Base

Colorado Springs, CO

Picatinny Arsenal

Morris County, NJ

Piñon Canyon Maneuver Site

Tyrone, CO

Pohakuloa Training Area

Hilo, HI

Point Barrow Long Range Radar Site

Point Barrow, AK

Portsmouth Naval Shipyard

Kittery, ME

Radford Army Ammunition Plant

Radford, VA

Redstone Arsenal

Huntsville, AL

Rock Island Arsenal

Rock Island, IL

Rome Research Laboratory

Rome, NY

Schriever Air Force Base

Colorado Springs, CO

Seymour Johnson Air Force Base

Goldsboro, NC

Shaw Air Force Base

Sumter, SC

Southeast Alaska Acoustic Measurement Facility

Ketchikan, AK

Tin City Long Range Radar Site

Tin City, AK

Tinker Air Force Base

Midwest City, OK

Travis Air Force Base

Fairfield, CA

Tyndall Air Force Base

Bay County, FL

US Army Natick Soldier Systems Center

Natick, MA

Watervliet Arsenal

Watervliet, NY

Wright-Patterson Air Force Base

Dayton, OH

Part 2

Site Name

Location

Aberdeen Proving Ground

Aberdeen, MD

Camp Shelby

Hattiesburg, MS

Cape Canaveral Air Force Station

Cape Canaveral, FL

Dare County Range

Manns Harbor, NC

Edwards Air Force Base

Edwards, CA

Eglin Air Force Base

Valparaiso, FL

Fallon Range Complex

Fallon, NV

Fort Bragg

Fayetteville, NC

Fort Greely

Delta Junction, AK

Fort Huachuca

Sierra Vista, AZ

Fort Irwin

San Bernardino County, CA

Fort Polk

Leesville, LA

Fort Wainwright

Fairbanks, AK

Hardwood Range

Necehuenemedah, WI

Hill Air Force Base

Ogden, UT

Mountain Home Air Force Base

Mountain Home, ID

Naval Air Station Meridian

Meridian, MS

Naval Air Station Patuxent River

Lexington Park, MD

Naval Air Weapons Station China Lake

Ridgecrest, CA

Naval Base Kitsap – Keyport

Keyport, WA

Naval Base Ventura County – Point Mugu Operating Facility

Point Mugu, CA

Naval Weapons Systems Training Facility Boardman

Boardman, OR

Nellis Air Force Base

Las Vegas, NV

Nevada Test and Training Range

Tonopah, NV

Pacific Missile Range Facility

Kekaha, HI

Patrick Air Force Base

Cocoa Beach, FL

Tropic Regions Test Center

Wahiawa, HI

Utah Test and Training Range

Barro, UT

Vandenberg Air Force Base

Lompoc, CA

West Desert Test Center

Dugway, UT

White Sands Missile Range

White Sands Missile Range, NM

Yuma Proving Ground

Yuma, AZ

Part 3

Site Name

County

Township/Range

90th Missile Wing Francis E. Warren Air Force Base Missile Field (Colorado, Nebraska, and Wyoming)

Chase County, NE

All

Dundy County, NE

All

Goshen County, WY

All

Hitchcock County, NE

All

Laramie County, WY

All

Logan County, CO

All

Platte County, WY

All

Weld County, CO

All

341st Missile Wing Malmstrom Air Force Base Missile Field (Montana)

Cascade County, MT

All

Chouteau County, MT

All, except lands located north of Township 22 North and east of Range 7 East based on the Bureau of Land Management’s Public Lands  Survey System

Fergus County, MT

All

Judith Basin County, MT

All

Lewis and Clark County, MT

All, except lands located south of Township 14 North and west of Range 9 West based on the Bureau of Land Management’s Public Lands  Survey System

Pondera County, MT

All, except lands located west of Range 9 West based on the Bureau of Land Management’s Public Lands Survey System

Teton County, MT

All, except lands located west of Range 9 West based on the Bureau of Land Management’s Public Lands Survey System

Toole County, MT

All

Wheatland County, MT

All

91st Missile Wing Minot Air Force Base Missile Field (North Dakota)

Bottineau County, ND

All

Burke County, ND

All

McHenry County, ND

All

McLean County, ND

All

Mountrail County, ND

All

Renville County, ND

All

Ward County, ND

All

Part 4

Site Name

Location

Boston Range Complex

Offshore Massachusetts, New Hampshire, Maine

Boston Operating Area

Offshore Massachusetts, New Hampshire, Maine

Charleston Operating Area

Offshore North Carolina, South Carolina

Cherry Point Operating Area

Offshore North Carolina, South Carolina

Corpus Christi Operating Area

Offshore Texas

Eglin Gulf Test and Training Range

Offshore Florida

Gulf of Mexico Range Complex

Offshore Mississippi, Alabama, Florida

Hawaii Range Complex

Offshore Hawaii

Jacksonville Operating Area

Offshore Florida, Georgia

Jacksonville Range Complex

Offshore Florida

Key West Operating Area

Offshore Florida

Key West Range Complex

Offshore Florida

Narragansett Bay Range Complex

Offshore Connecticut, Massachusetts, New York, Rhode Island

Narragansett Bay Operating Area

Offshore Connecticut, Massachusetts, New York, Rhode Island

New Orleans Operating Area

Offshore Louisiana

Northern California Range Complex

Offshore California

Northwest Training Range Complex

Offshore Oregon, Washington

Panama City Operating Area

Offshore Florida

Pensacola Operating Area

Offshore Alabama, Florida

Point Mugu Sea Range

Offshore California

Southern California Range Complex

Offshore California

Virginia Capes Operating Area

Offshore Delaware, Maryland, North Carolina, Virginia

Virginia Capes Range Complex

Offshore Delaware, Maryland, North Carolina, Virginia

1 31 C.F.R. § 801.204.

2 On November 19, 2018, the Bureau of Industry and Security issued an Advance Notice of Proposed Rulemaking (ANPRM) regarding identification of emerging technologies.  83 FR 58201.  The Commerce Department will issue a separate ANPRM regarding identification of foundational technologies.

3 31 C.F.R. § 801.407.

4 The Part 800 Regulations exclude certain investment fund transactions from the mandatory declaration requirement.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Theodore Kassinger, an O’Melveny partner licensed to practice law in the District of Columbia and Georgia, Greta Lichtenbaum, an O’Melveny partner licensed to practice law in the District of Columbia, David J. Ribner, an O’Melveny counsel licensed to practice law in the District of Columbia and New York, and Mary Pat Dwyer, an O’Melveny associate licensed to practice law in the District of Columbia and Pennsylvania, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

© 2019 O’Melveny & Myers LLP. All Rights Reserved. Portions of this communication may contain attorney advertising. Prior results do not guarantee a similar outcome. Please direct all inquiries regarding New York’s Rules of Professional Conduct to O’Melveny & Myers LLP, Times Square Tower, 7 Times Square, New York, NY, 10036, T: +1 212 326 2000.

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