§ 800.245. Substantive decisionmaking.
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/us/cfr/t31/s§ 800.245·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
(a)The term substantive decisionmaking means the process through which decisions regarding significant matters affecting an entity are undertaken, including, as applicable:
(1)Pricing, sales, and specific contracts, including the license, sale, or transfer of sensitive personal data to any third party, including pursuant to a customer, vendor, or joint venture agreement;
(2)Supply arrangements;
(3)Corporate strategy and business development;
(4)Research and development, including location and budget allocation;
(5)Manufacturing locations;
(6)Access to critical technologies, covered investment critical infrastructure, material nonpublic technical information, or sensitive personal data, including pursuant to a customer, vendor, or joint venture agreement;
(7)Physical and cyber security protocols, including the storage and protection of critical technologies, covered investment critical infrastructure, or sensitive personal data;
(8)Practices, policies, and procedures governing the collection, use, or storage of sensitive personal data, including:
(i)The establishment or maintenance of, or changes to, the architecture of information technology systems and networks used in collecting or maintaining sensitive personal data; or
(ii)Privacy policies and agreements for individuals from whom sensitive personal data is collected setting forth parameters regarding whether and how sensitive personal data may be collected, maintained, accessed, or disseminated; or
(9)Strategic partnerships.
(b)The term substantive decisionmaking does not include strictly administrative decisions.
(c)Examples:
(1)Example 1. Corporation A, a foreign person that is not an excepted investor, proposes to acquire a four percent, non-controlling equity interest in Corporation B. Corporation B is an unaffiliated TID U.S. business that operates a container terminal at a strategic seaport within the National Port Readiness Network (Terminal B). Pursuant to the terms of the investment, Corporation A will have approval rights over which customers may utilize Terminal B. The proposed investment therefore affords Corporation A involvement in substantive decisionmaking of Corporation B regarding the management, operation, manufacture, or supply of covered investment critical infrastructure.
(2)Example 2. Same facts as the example in paragraph (c)(1) of this section, except that instead of customer approval rights, Corporation A has the right to decide whether to claim certain tax credits with respect to Terminal B on its own income tax filing, which prevents Corporation B from claiming such credits. Assuming no other relevant facts, the proposed investment does not afford Corporation A involvement in substantive decisionmaking of Corporation B regarding the management, operation, manufacture, or supply of covered investment critical infrastructure.