Committee on Foreign Investment in the United States

The Committee on Foreign Investment in the United States (CFIUS, commonly pronounced “sifius”) is an inter-agency committee of the United States Government that reviews the national security implications of foreign investments in U.S. companies or operations. Chaired by the Secretary of the Treasury, CFIUS includes representatives from 16 U.S. departments and agencies, including the Defense, State and Commerce departments, as well as (most recently) the Department of Homeland Security. CFIUS was established by Gerald Ford‘s Executive Order 11858 in 1975. President Reagan delegated the review process to the Committee on Foreign Investment in the United States with the Executive Order 12661 in 1988. This was in response to U.S. Congress giving authority to the President to review foreign investments, in the form of Exon-Florio Amendment.

PROCESS

Companies proposing to be involved in an acquisition by a foreign firm are supposed to voluntarily notify CFIUS, but CFIUS can review transactions that are not voluntarily submitted.

CFIUS reviews begin with a 30-day decision to authorize a transaction or begin a statutory investigation. If the latter is chosen, the committee has another 45 days to decide whether to permit the acquisition or order divestment. Most transactions submitted to CFIUS are approved without the statutory investigation.

CFIUS has looked at the “restrictions on sale of advanced computers to any of a long list of foreign recipients, ranging from China to Iran.” CFIUS reviews even deals with firms from U.S. allies, such as BAE Systems‘ early-2005 acquisition of United Defense. This and the vast majority of transactions submitted to CFIUS are approved without difficulty. But at least one deal has been called off when CFIUS began to take a closer look.

HISTORY

In 1975, President Ford created the Committee by Executive Order 11858. It was composed of the Secretaries of the Secretary of the Treasury as the chairman,Secretary of State, Secretary of Defense, Secretary of Commerce, the Assistant to the President for Economic Affairs, and the Executive Director of the Council on International Economic Policy. The Executive Order also stipulated that the Committee would have “primary continuing responsibility within the Executive Branch for monitoring the impact of foreign investment in the United States, both direct and portfolio, and for coordinating the implementation of United States policy on such investment.” In particular, CFIUS was directed to:^[6]

1. arrange for the preparation of analyses of trends and significant developments in foreign investments in the United States;
2. provide guidance on arrangements with foreign governments for advance consultations on prospective major foreign governmental investments in the United States;
3. review investments in the United States which, in the judgment of the Committee, might have major implications for United States national interests; and
4. consider proposals for new legislation or regulations relating to foreign investment as may appear necessary.

In 1980, President Jimmy Carter added the United States Trade Representative and substituted the Chairman of the Council of Economic Advisers for the Executive Director of the Council on International Economic Policy by Executive Order 12188.

In 1988, the Exon–Florio Amendment was the result of national security concerns in Congress caused by the proposed purchase of Fairchild Semiconductor byFujitsu. The Exon-Florio Amendment granted the President the authority to block proposed mergers, acquisitions, and takeovers that threaten national security. In 1988, President Ronald Reagan added the Attorney General and the Director of the Office of Management and Budget by Executive Order 12661.

In 1992, the Byrd Amendment required CFIUS to investigate proposed mergers, acquisitions, and takeovers where the acquirer is acting on behalf of a foreign government and effects national security.^[5] In 1993, President Bill Clinton added the Director of the Office of Science and Technology Policy, the National Security Advisor, and the Assistant to the President for Economic Policy by Executive Order 12860.^[5][11] In 2003, President George W. Bush added the Secretary of Homeland Security byExecutive Order 13286.

The Foreign Investment and National Security Act of 2007 (FINSA) established the Committee by statutory authority, reduced membership to 6 cabinet members and the Attorney General, added the Secretary of Labor and the Director of National Intelligence, and removed 7 White House appointees.^[5] In 2008, President Bush added theUnited States Trade Representative and the Director of the Office of Science and Technology Policy by Executive Order 13456 implementing the law.^[5][13] FINSA requires the President to conduct a national security investigation of certain proposed investment transactions, provides a broader oversight role for Congress, and keeps the President as the only officer with the authority to suspend or prohibit mergers, acquisitions, and takeovers.

NOTABLE CASES

In 1990 and 2012, respectively, only two foreign investments have been blocked by U.S. presidents,^[14] though others have been considered and, often, less explicitly opposed:

• 1990: President George H. W. Bush voided the sale of MAMCO Manufacturing to a Chinese agency,^[14] ordering China National Aero-Technology Import & Export Corporation to divest themselves of Seattle-based MAMCO^[15]
• 2000: NTT Communications‘ acquisition of Verio^{[citation needed]}
• 2005: The acquisition of IBM‘s personal computer and laptop unit by Lenovo was approved by President George W. Bush^[14]
• 2005: The acquisition of Sequoia Voting Systems of Oakland, California, by Smartmatic, a Dutch company contracted by Hugo Chávez‘s government to replace that country’s elections machinery^[16]
• 2005: Pure NYSE listing public oil company, CNOOC Limited’s attempted acquisition of Unocal Corporation^{[citation needed]}
• 2006: State-owned Dubai Ports World‘s planned acquisition of P&O, the operator of many US ports, including New York^{[citation needed]}
• 2012: Ralls Corporation, owned by the Chinese Sany Group,^[17] was ordered by President Barack Obama to divest itself of four small wind farm projects located too close to a U.S. Navy weapons systems training facility in Boardman, Oregon^[14]

Opinions on the Committee

In February 2006, Richard Perle gave more insight into CFIUS when he related to CBS News his experience on the panel during the Reagan administration, “The committee almost never met, and when it deliberated it was usually at a fairly low bureaucratic level.” He also added, “I think it’s a bit of a joke if we were serious about scrutinizing foreign ownership and foreign control, particularly since 9/11.”^[21]

Others emphasize the crucial role that foreign direct investment plays in the U.S. economy, and the discouraging effect that heightened scrutiny may cause. Foreign investors in the United States, much like U.S. investors elsewhere, bring expertise and infusions of capital into often-struggling sectors of the U.S. economy. In a February 2006 interview with the New York Times, another former Reagan administration official, Clyde V. Prestowitz Jr., noted that the United States “need[s] a net inflow of capital of $3 billion a day to keep the economy afloat…. Yet all of the body language here is ‘go away.'”^[22] And, as Secretary Powell once remarked, “money, capital, is a coward; it will go nowhere where it is put in fear.”

CFIUS is an inter-agency committee authorized to review transactions that could result in control of a U.S. business by a foreign person (“covered transactions”), in order to determine the effect of such transactions on the national security of the United States.  CFIUS operates pursuant to section 721 of the Defense Production Act of 1950, as amended by the Foreign Investment and National Security Act of 2007 (FINSA) (section 721) and as implemented by Executive Order 11858, as amended, and regulations at 31 C.F.R. Part 800.