Page 81 - The CFIUS Book

7. Footnotes and magnified CFIUS maps
1. Section 721 of the defense production act of 1950 (Section 721) (50 U.S.C. 2170).
2 31 C.F.r. § 800.101 (2017).
3 See https://www.globaltradelawblog.com/, https://www.fcclawblog.com/, and https://www.governmentcontractslawblog.com/
4 31 C.F.r. § 800.401 (2017).
5 31 C.F.r. § 800.301 (2017).
6 31 C.F.r. § 800.216 (2017).
7 31 C.F.r. § 800.216 (2017), Examples 1 and 2.
8 Id., Example 4.
9 Id., Example 5.
10 Id., Example 6.
11 31 C.F.r. § 800.204(a) (2017).
12 U.S. department of the Treasury, Office of Investment Security; regulations pertaining to mergers, acquisitions and Takeovers by Foreign persons, 73 Fed. reg. 70,702, 70,704 (nov. 21, 2008) (to be codified at 38 C.F.r. pt. 800) (Final rule).
13 31 C.F.r. § 800.204(b) (2017).
14 Final rule, 73 Fed. reg. at 70,705.
15 31 C.F.r. § 800.226 (2017).
16 Final rule, 73 Fed. reg. at 70,705.
17 John S. mcCain national defense authorization act of 2019, pub l. 115-232, §1703
18 John S. mcCain national defense authorization act of 2019, pub l. 115-232, §1703
19 CFIUS reviewed 147 notices in 2014, 143 in 2015, 172 in 2016, and over 225 in 2017.
20 U.S. department of the Treasury, Office of Investment Security,; guidance Concerning the national Security review Conducted by the Committee on Foreign Investment in the United States, 73 Fed. reg. 74,567, 74,569 (dec. 8, 2008) (CFIUS guidance).
21 Final rule, 73 Fed. reg. at 70,705.
22 31 C.F.r. § 800.702 (2017) (information submitted in CFIUS notice “shall be exempt” under the Freedom of Information act, 5 U.S.C. § 552).
23 31 C.F.r. § 800.801 (2017).
24 CFIUS regulations provide for civil penalties for misstatements submitted intentionally or through gross negligence. See 31 C.F.r. § 800.801(a). However, willfully providing false information to the government may incur criminal penalties under other statutes.
25 See U.S. Census Bureau, north american Industry Classification System, https://www.census.gov/eos/www/naics/ (last revised april 8, 2018).
26 See dun & Bradstreet, d-U-n-S request Service for US Federal government Contractors and assistance awardees, https://fedgov.dnb.com/webform (last visited april 6, 2018).
27 31 C.F.r. § 800.503(b)(2) (2017).
28 John S. mcCain national defense authorization act of
2019, pub l. 115-232, §1707
29 See ralls Corp. v. Committee on Foreign Investment in the US, 758 F.3d 296 (d.C. Cir. 2014). In ralls, the acquisition of U.S. wind farm projects was blocked on the grounds that one or more of the projects was located within restricted U.S. military airspace. The case was litigated on due process and other grounds, and ultimately settled for undisclosed terms. See J. Wang, “ralls Corp. v. CFIUS: a new look at Foreign direct Investments to the US,” 54 Colum. J. Transnat’l l. Bulletin 30 (2017).
30 31 C.F.r. § 800.401(f) (2017).
31 John S. mcCain national defense authorization act of 2019, pub l. 115-232, §1704
32 The name of the current CFIUS Staff Chairperson can be found here:
https://www.treasury.gov/about/organizational- structure/offices/pages/-Investment-Security.aspx
33 https://www.treasury.gov/resource- center/international/foreign-investment/documents/cert- notice-template.pdf
34 31 C.F.r. § 800.403 (2017).
35 31 C.F.r. § 800.502(b) (2017).
36 See defense production act of 1950, Section 721(b)(4). 37 31 C.F.r. § 800.502(c) (2017).
38 CFIUS guidance, 73 Fed. reg. at 74,568.
39 See U.S. department of the Treasury, Office of Investment Security; guidance Concerning the national Security review Conducted by the Committee on Foreign Investment in the United States, 73 Fed. reg. 74,567 (december 8, 2008) (guidance).
40 limits are also imposed on the scope of CFIUS review due to international obligations, such as U.S. membership in the World Trade Organization, that are designed to encourage openness to foreign investment. Exceptions to those obligations include national security measures. See, e.g., World Trade Organization, general agreement on Tariffs and Trade art. xxI; see also World Trade Organization, general agreement on Trade in Services, available at https://www.wto.org/english/docs_e/legal_e/18- trims_e.htm.
41 defense production act, Section 721(f).
42 50 U.S.C. § 2170(f)(11) (2017).
43 CFIUS guidance, 73 Fed. reg. at 74,569 (emphasis added). 44 121 Stat. 246, pub.l. 110-49 (July 26, 2007).
45 See James K. Jackson, Foreign Investment and national Security: Economic Considerations, C.r.S. rep. no. rl34561( 2013).
46 See 31 C.F.r. 800.501(b) (“during the thirty-day review period or during an investigation, the Staff Chairperson may invite the parties to a notified transaction to attend a meeting with the Committee staff to discuss and clarify issues pertaining to the transaction. during an investigation, a party to the transaction under investigation may request a meeting with the Committee staff; such a request ordinarily will be granted.”).
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