On December 8, the Committee on Committee on Foreign Investment in the United States published a notice in the Federal Register of that provides guidance to U.S. businesses and foreign persons that are parties to transactions that are covered by section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007, and the regulations at 31 CFR part 800.
Section 721 requires CFIUS to review covered transactions notified to it ‘‘to determine the effects of the transaction[s] on the national security of the United States,’’ but does not define ‘‘national security,’’ other than to note that the term includes issues relating to homeland security. Instead, section 721 provides an illustrative list of factors, listed below, for CFIUS to consider.
This notice provides examples and insight into what types of transaction could trigger a CFIUS review.
CFIUS notes that a just because a transaction presents national security considerations does not mean that CFIUS will necessarily determine that the transaction poses national security risk.
- Guidance Concerning the National Security Review Conducted by the Committee on Foreign Investment in the United States
Federal Register Vol. 73, No. 236 Monday, December 8, 2008, pp. 74567-74572
- CFIUS Guidance Concerning National Security Considerations
Davis Polk & Wardwell memo, December 10, 2008