Page 56 - The CFIUS Book
P. 56
THE CFIUS BOOK
3.3. The Response: 45-Day Investigation
3.3.1. Determination to commence an investigation
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After the 45-day review is complete, CFIUS either closes the review or commences an additional 45-day investigation. The Committee is required to commence an investigation under any of the following circumstances.53
1. Any CFIUS member advises the Staff Chair that the member believes the transaction threatens to impair the national security of the United States and that the threat has not been mitigated;
2. The lead agency recommends that an investigation be undertaken and the Committee concurs;
3. Thepurchaserisaforeign-government-controlledentity;or
4. Thetransactionwouldresultinforeigncontrolof“criticalinfrastructureofor within the United States,” if the Committee determines that the transaction could impair the national security and such impairment has not been mitigated.54
Effectively, circumstance number 2 listed above may allow any Committee agency to prevail on the lead agency to extend the time for review if that agency has not finished its work. As we have discussed, CFIUS is increasingly stretched by a
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InvESTIgaTIOnS arE SUppOSEd TO BE
lImITEd TO CErTaIn CIrCUmSTanCES. HOwEvEr, THEy may BE EmplOyEd TO BUy ExTra TImE FOr OvErTaxEd agEnCIES TO COmplETE a rEvIEw.
