Page 57 - The CFIUS Book

mounting workload of reviews and no commensurate increase in staff among its agencies.
If CFIUS undertakes an investigation, the 45-day clock must start no later than the last day of the 45-day review period. The Department of Treasury must send the parties written notice that it is commencing an investigation.51
3.3.2. Conduct of the investigation
Under past practice, CFIUS conducted investigations in the same manner as its review (Section 3.2). The purpose of the investigation is presumably to determine the effects of the transaction on the national security of the United States. That determination is also made by reference to the factors contained in Section 721 of the Defense Production Act and listed earlier (Section 1.2.1).
During the investigation, the Committee may ask for supplemental information from any party at any time. The same 3-day response rule will apply as it does in reviews (Section 3.2.2): if CFIUS poses any request to any party for follow-up information, and the party does not respond within 3 business days, CFIUS may reject the notice altogether.55 Any additional investigation must be completed no later than 45 days after the investigation was commenced.56 In “extraordinary circumstances” CFIUS may extend this investigation by 15 days. At the completion of the investigation, CFIUS will either close the investigation or take other action as further described below.
3.3.3. Responses of CFIUS
Under the FIRRMA revisions, CFIUS has the authority to:
l Suspend a transaction during review or investigation;
l Use mitigation agreements or conditions to address potential issues with abandoned transactions;
l Imposeinterimmitigationagreementsorconditionsoncompletedtransactions that are still under CFIUS review; or
l Refer the review to the President.
We discuss mitigation agreements in more detail in Section 3.5.1 below. Overall, FIRRMA has expanded the scope of CFIUS’s power over transactions, particularly during any review or investigation. If CFIUS acts to suspend a transaction, impose
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