Proposed new fees for filing voluntary transaction reviews before the Committee on Foreign Investment in the United States were published Monday in the Federal Register.

Kirkland & Ellis partner and international trade/national security practice leader Mario Mancuso said the final rule would "add an additional important CFIUS consideration for transactions. In addition to deciding how substantive CFIUS risks are allocated in a purchase agreement (for example, relating to potential mitigation measures), transaction parties will need to decide how to allocate payment of fees," in a statement.

The fees range from $750—where the deal value is equal to or greater than $500,000 but less than $5 million—up to $300,000, where the transaction value is equal to or greater than $750 million.

The Foreign Investment Risk Review Modernization Act enacted in 2018 authorized CFIUS, the interagency panel at the U.S. Treasury Department, to collect filing fees so long as the fees don't exceed $300,000 or 1% of the transaction value, whichever is less, adjusted annually for inflation.

Mancuso, who was a former senior member of President George W. Bush's national security team and a CFIUS decision-maker, said in a statement that the proposed fees amount to 0.15% or less of transaction values. Not all transactions notified to CFIUS will require payment of a filing fee, he said.

The proposed fees are for "covered transactions" under the Part 800 rule and "covered real estate transactions" under the Part 802 rule, which are filed with CFIUS as voluntary written notices, said Chris Griner, partner at Stroock & Stroock & Lavan in Washington, D.C., in an interview.

Griner said they apply to notices filed by parties to a covered transaction, or a covered real estate transaction, after CFIUS has completed evaluating a declaration and taken action in cases where CFIUS requests the parties file a written notice; and also in cases where the committee informs parties that it is not able to conclude action, and the parties may file a written notice. The filing fee also applies where parties choose to notify CFIUS of a transaction through a certain type of notice instead of a declaration, he said.

"CFIUS went out of their way to make the new fees reasonable and with a view towards not discouraging transaction, but allowing appropriate scrutiny as necessary," Griner said.

But he added, "It's important to remember that this is only a proposed rule. CFIUS is not yet requiring payment of fees, and public comments may prompt meaningful changes in the eventual final rule."

Stroock associate Tatiana Sullivan said, "Funds generated by new filing fees will add to existing appropriations to ensure the government panel can keep staffing and resource levels up to meet the FIRRMA-expanded CFIUS workload." 

Comments on the proposed rule are due 30 days after publication in the Federal Register, with the expected deadline of April 8.

On Friday, President Donald Trump blocked the third foreign acquisition or divestiture of a company after a CFIUS review of his administration. He ordered Beijing Shiji Information Technology Co. Ltd, based in China, and its subsidiary Shiji (Hong Kong) Ltd., in Hong Kong to divest from StayNTouch, a hotel management software company based in Delaware, which Shiji had acquired in September 2018.

Earlier, Trump blocked the hostile takeover of Qualcomm Inc., then organized in Singapore, by Broadcom Ltd. in 2018. He also stopped the proposed purchase of a U.S. semiconductor company by a Chinese venture fund in 2017. Presidents have only blocked six transactions since 1990, according to an alert from Hogan Lovells.

Meanwhile, the formerly obscure CFIUS recently had a moment in the spotlight when it was mentioned in the final season of "Silicon Valley," the HBO series. In the show, the interagency panel put the kibosh on the fictional tech company's plan to relocate its headquarters to the former Soviet Republic of Georgia.

Although the show's writers misunderstood how CFIUS functions, it probably marks one of the panel's few mentions in popular entertainment, as noted by Lowenstein Sandler attorneys Abbey E. Baker and Doreen Edelman in a recent commentary in Corporate Counsel affiliate Legaltech News.

Note: This story has been updated with information about the presidential order issued on March 6.