Page 25 - The CFIUS Book
P. 25

 or structure, creates susceptibility to impairment of U.S. national security (i.e., whether there is a vulnerability).
Analysis of two points will help to determine if yours is the type of transaction that CFIUS typically takes under review:
§1.2.1 Transaction elements that CFIUS may consider a National Security Risk; and §1.2.2 Transaction types in which CFIUS typically takes an interest.
1.2.1. Transaction Elements that CFIUS May Consider a National Security Risk
Any indicia that your transaction involves elements of U.S. critical infrastructure will make it more likely to be noticed and reviewed by CFIUS because it raises a national security consideration. Pursuant to CFIUS guidance, the fact that your transaction presents national security considerations does not mean that CFIUS will necessarily determine that the transaction poses national security risk. First, the national security consideration may not present both a vulnerability and a threat. Second, other U.S. laws or regulations may resolve any national security concern with respect to your transaction. So the presence or absence of the elements listed below does not guarantee a review or no review, but the list contains the factors that CFIUS considers when it examines whether a covered transaction poses a national security risk.20

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